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02-01-2013, 20:55   #16
ResearchWill
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Originally Posted by Marcusm View Post
I had read the case before; I was being too unclear with my statements, I think the following part of the decision would put up a significant barrier for the OP's wife as if she has not lived elsewhere in the EU, this decision (which the OP might find difficult to scan) might preclude her from using the EU route entirely.

"43 It follows that Article 3(1) of Directive 2004/38 is to be interpreted as meaning that that directive is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State. "
That is why I am trying to find out is has the wife always resided in UK or Ireland. If she has always resided or in reality mostly resided in Ireland then she can exercise EU treaty rights in UK if on the other hand she has always resided in UK then under the McCarthy decision she can not in the UK exercise treaty rights. McCarthy does not say a dual citizen can not exercise treaty rights in the other state only that they can not exercise treaty rights in the country they always lived in.
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02-01-2013, 21:13   #17
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If she has always resided or in reality mostly resided in Ireland then she can exercise EU treaty rights in UK if on the other hand she has always resided in UK then under the McCarthy decision she can not in the UK exercise treaty rights.
I may be taking too literal a construction of the para I quoted and of the ruling itself but the case itself did not consider the point at issue as she had never lived in the other country (ie Ireland) but I think it's open to question even if McCarthu had lived in Ireland as to whether that would have been an exercise of treaty rights or citizenship rights. The court might determine this to be a national issue rather than a community one even if the person has lived in both states of which she is a citizen.
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02-01-2013, 21:28   #18
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I may be taking too literal a construction of the para I quoted and of the ruling itself but the case itself did not consider the point at issue as she had never lived in the other country (ie Ireland) but I think it's open to question even if McCarthu had lived in Ireland as to whether that would have been an exercise of treaty rights or citizenship rights. The court might determine this to be a national issue rather than a community one even if the person has lived in both states of which she is a citizen.
Maybe I am reading a different case to you

14 Mrs McCarthy, a national of the United Kingdom, is also an Irish national. She was born and has always lived in the United Kingdom, and has never argued that she is or has been a worker, self-employed person or self-sufficient person. She is in receipt of State benefits.

15 On 15 November 2002, Mrs McCarthy married a Jamaican national who lacks leave to remain in the United Kingdom under the Immigration Rules of that Member State.

16 Following her marriage, Mrs McCarthy applied for an Irish passport for the first time and obtained it.

17 On 23 July 2004, Mrs McCarthy and her husband applied to the Secretary of State for a residence permit and residence document under European Union law as, respectively, a Union citizen and the spouse of a Union citizen. The Secretary of State refused their applications on the ground that Mrs McCarthy was not ‘a qualified person’ (essentially, a worker, self-employed person or self-sufficient person) and, accordingly, that Mr McCarthy was not the spouse of ‘a qualified person’.

21 In that context, the Supreme Court of the United Kingdom decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1. Is a person of dual Irish and United Kingdom nationality who has resided in the United Kingdom for her entire life a “beneficiary” within the meaning of Article 3 of Directive 2004/38 …?

2. Has such a person “resided legally” within the host Member State for the purpose of Article 16 of [that] directive in circumstances where she was unable to satisfy the requirements of Article 7 of [that directive]?’

39. Hence, in circumstances such as those of the main proceedings, in so far as the Union citizen concerned has never exercised his right of free movement and has always resided in a Member State of which he is a national, that citizen is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, so that that directive is not applicable to him.


She was a UK national, she married a non EU national, she applied for her Irish passport, she then to allow her husband to stay applied for treaty rights The ECJ said she was not exercising treaty rights and so National Rules apply. The case may have been decided differently if she had lived most or a good portion of her life in Ireland as she may then have been held to be exercising treaty rights again I say may as that was not the question asked. If she had also say went to Germany and then returned to the UK she would have a right to EU treaty rights in UK.

Last edited by ResearchWill; 02-01-2013 at 21:35.
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02-01-2013, 21:36   #19
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Maybe I am reading a different case to you

14 Mrs McCarthy, a national of the United Kingdom, is also an Irish national. She was born and has always lived in the United Kingdom, and has never argued that she is or has been a worker, self-employed person or self-sufficient person. She is in receipt of State benefits.

15 On 15 November 2002, Mrs McCarthy married a Jamaican national who lacks leave to remain in the United Kingdom under the Immigration Rules of that Member State.

16 Following her marriage, Mrs McCarthy applied for an Irish passport for the first time and obtained it.

17 On 23 July 2004, Mrs McCarthy and her husband applied to the Secretary of State for a residence permit and residence document under European Union law as, respectively, a Union citizen and the spouse of a Union citizen. The Secretary of State refused their applications on the ground that Mrs McCarthy was not ‘a qualified person’ (essentially, a worker, self-employed person or self-sufficient person) and, accordingly, that Mr McCarthy was not the spouse of ‘a qualified person’.

21 In that context, the Supreme Court of the United Kingdom decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1. Is a person of dual Irish and United Kingdom nationality who has resided in the United Kingdom for her entire life a “beneficiary” within the meaning of Article 3 of Directive 2004/38 …?

2. Has such a person “resided legally” within the host Member State for the purpose of Article 16 of [that] directive in circumstances where she was unable to satisfy the requirements of Article 7 of [that directive]?’

She was a UK national, she married a non EU national, she applied for her Irish passport, she then to allow her husband to stay applied for treaty rights The ECJ said she was not exercising treaty rights and so National Rules apply. The case may have been decided differently if she had lived most or a good portion of her life in Ireland as she may then have been held to be exercising treaty rights again I say may as that was not the question asked.
Definitely the same case and I'm not contradicting you but I think it might be a weak "may" given some of the statements which might give further guidance as to what the underlying views are on exercising treaty rights. I refer to statements such as that quoted below which would have been equally applicable to Ms McCarthy had she split her life between Ireland and the UK. In neither case would she necessarily have been exercising treaty rights (being a citizen of both countries) and I suggest that it might have been determined that national rules applied notwithstanding the involvement of two member states.

"Hence, in circumstances such as those of the main proceedings, in so far as the Union citizen concerned has never exercised his right of free movement and has always resided in a Member State of which he is a national, that citizen is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, so that that directive is not applicable to him. "

Last edited by Marcusm; 02-01-2013 at 21:36. Reason: that quoted below
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02-01-2013, 21:37   #20
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Where would she be if she renounced her UK citizenship?
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02-01-2013, 21:39   #21
ResearchWill
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Definitely the same case and I'm not contradicting you but I think it might be a weak "may" given some of the statements which might give further guidance as to what the underlying views are on exercising treaty rights. I refer to statements such as which would have been equally applicable to Ms McCarthy had she split her life between Ireland and the UK. In neither case would she necessarily have been exercising treaty rights (being a citizen of both countries) and I suggest that it might have been determined that national rules applied notwithstanding the involvement of two member states.

"Hence, in circumstances such as those of the main proceedings, in so far as the Union citizen concerned has never exercised his right of free movement and has always resided in a Member State of which he is a national, that citizen is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, so that that directive is not applicable to him. "

Now I get you. Yes I agree if its split time it may be a difficult case to bring home. But is say the wife lived, went to school and worked in ireland and only time in UK was holidays, I believe she may have a good argument.

In any case if the OP and his wife went to say France to live and work then after time decided to return to the UK then that would be covered under EU law.
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04-01-2013, 10:53   #22
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Hello, me (US citizen) and my soon to be wife (Irish + UK passport holder) are about to be married in America, then shortly after move to Ireland. We are planning to go the GNIB and get a stamp 4 so I can live and work there.

My question is, can I work in Northern Ireland with a stamp 4?

Is there a difference if we get a 4EUFAM? Will that allow me to work in NI if stamp 4 doesn't?

How would I get a 4EUFAM?

Thanks so much for your help!

You will not be able to work in Northern Ireland, unless, your husband, an Irish Citizen , acts in some way that shows that he is exercising his EU Treaty Rights there.

It could be by him working, or him making NI his usual residency but is clearly self sufficient


A EU Stamp Fam 4 to reside in the South, will not allow you to work in NI, unless hubby is connected in NI



If your husband , being Irish, is living and working in the South, and he is not coming from another EU country, then, EU law will not apply (McCarthy case) Irish law only, because he is not exercising Treaty Rights in the South. If he went North, that would be different, (he upon family returning to the South after some months, EU law is relevant - Singh case )
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04-01-2013, 10:56   #23
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I may be taking too literal a construction of the para I quoted and of the ruling itself but the case itself did not consider the point at issue as she had never lived in the other country (ie Ireland) but I think it's open to question even if McCarthu had lived in Ireland as to whether that would have been an exercise of treaty rights or citizenship rights. The court might determine this to be a national issue rather than a community one even if the person has lived in both states of which she is a citizen.
Simply living is not enough for family reunification. They must work, or be self sufficient (not on social) or students, or self employed
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